HOUSE BILL 235
56th legislature - STATE OF NEW MEXICO - first session, 2023
Gail Chasey and Tara Jaramillo
RELATING TO CHILDREN; EXPANDING THE RIGHTS OF A CHILD TO APPEAR AT THE CHILD'S ABUSE AND NEGLECT HEARINGS; LOWERING THE AGE FOR MANDATORY APPOINTMENT OF AN ATTORNEY.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF NEW MEXICO:
SECTION 1. Section 32A-1-7 NMSA 1978 (being Laws 1993, Chapter 77, Section 16, as amended) is amended to read:
"32A-1-7. GUARDIAN AD LITEM--POWERS AND DUTIES.--
A. A guardian ad litem shall consult with the child to determine the child's stated interests before every hearing.
B. With the child's consent, a guardian ad litem shall convey the child's stated interests to the court at every hearing.
C. A guardian ad litem shall incorporate the child's stated interest as part of the analysis of the child's best interest.
[A.] D. A guardian ad litem shall zealously represent the child's best interests in the proceeding for which the guardian ad litem has been appointed and in any subsequent appeals.
[B.] E. Unless excused by a court, a guardian ad litem appointed to represent a child's best interests shall continue the representation in any subsequent appeals.
[C.] F. Any party may petition the court for an order to remove a guardian ad litem on the grounds that the guardian ad litem has a conflict of interest or is unwilling or unable to zealously represent the child's best interests.
[D. After consultation with the child, a guardian ad litem shall convey the child's declared position to the court at every hearing.
E.] G. Unless a child's circumstances render the following duties and responsibilities unreasonable, a guardian ad litem shall:
(1) meet with and interview the child prior to custody hearings, adjudicatory hearings, dispositional hearings, judicial reviews and any other hearings scheduled in accordance with the provisions of the Children's Code;
(2) communicate with health care, mental health care and other professionals involved with the child's case;
(3) review medical and psychological reports relating to the child and the respondents;
(4) contact the child prior to any proposed change in the child's placement;
(5) contact the child after changes in the child's placement;
(6) attend local substitute care review board hearings concerning the child and if unable to attend the hearings, forward to the board a letter setting forth the child's status during the period since the last local substitute care review board review and include an assessment of the department's permanency and treatment plans;
(7) report to the court on the child's adjustment to placement, the department's and respondent's compliance with prior court orders and treatment plans and the child's degree of participation during visitations; and
(8) represent and protect the cultural needs of the child.
[F.] H. A guardian ad litem may retain separate counsel to represent the child in a tort action on a contingency fee basis or any other cause of action in proceedings that are outside the jurisdiction of the children's court. When a guardian ad litem retains separate counsel to represent the child, the guardian ad litem shall provide the court with written notice within ten days of retaining the separate counsel. A guardian ad litem shall not retain or subsequently obtain any pecuniary interest in an action filed on behalf of the child outside of the jurisdiction of the children's court.
[G.] I. In the event of a change of venue, the originating guardian ad litem shall remain on the case until a new guardian ad litem is appointed by the court in the new venue and the new guardian ad litem has communicated with and received all pertinent information from the former guardian ad litem.
[H.] J. A guardian ad litem shall receive notices, pleadings or other documents required to be provided to or served upon a party. A guardian ad litem may file motions and other pleadings and take other actions consistent with the guardian ad litem's powers and duties.
[I.] K. A guardian ad litem shall not serve concurrently as both the child's delinquency attorney and guardian ad litem."
SECTION 2. Section 32A-4-10 NMSA 1978 (being Laws 1993, Chapter 77, Section 104, as amended) is amended to read:
"32A-4-10. BASIC RIGHTS.--
A. A child subject to the provisions of the Children's Code is entitled to the same basic rights as an adult, except as otherwise provided in the Children's Code.
B. At the inception of an abuse or neglect proceeding, counsel shall be appointed for the parent, guardian or custodian of the child. The appointed counsel shall represent the parent, guardian or custodian who is named as a party until an indigency determination is made at the custody hearing. Counsel shall also be appointed if, in the court's discretion, appointment of counsel is required in the interest of justice.
C. At the inception of an abuse and neglect proceeding, the court shall appoint a guardian ad litem for a child under [fourteen] six years of age. If the child is [fourteen] six years of age or older, the court shall appoint an attorney for the child. No officer or employee of an agency that is vested with the legal custody of the child shall be appointed as guardian ad litem of or attorney for the child. Only an attorney with appropriate experience shall be appointed as guardian ad litem of or attorney for the child.
D. When reasonable and appropriate, the court shall appoint a guardian ad litem or attorney who is knowledgeable about the child's particular cultural background.
E. When a child reaches [fourteen] six years of age, the child's guardian ad litem shall continue as the child's attorney; provided that the court shall appoint a different attorney for the child if:
(1) the child requests a different attorney;
(2) the guardian ad litem requests to be removed; or
(3) the court determines that the appointment of a different attorney is appropriate.
F. The court shall assure that the child's guardian ad litem zealously represents the child's best interest and that the child's attorney zealously represents the child.
G. A person afforded rights under the Children's Code shall be advised of those rights at that person's first appearance before the court on a petition under the Children's Code."
SECTION 3. Section 32A-4-20 NMSA 1978 (being Laws 1993, Chapter 77, Section 114, as amended) is amended to read:
"32A-4-20. CONDUCT OF HEARINGS--FINDINGS--DISMISSAL--DISPOSITIONAL MATTERS--PENALTY.--
A. The proceedings shall be recorded by stenographic notes or by electronic, mechanical or other appropriate means.
B. All abuse and neglect hearings shall be closed to the general public.
C. Only the parties, their counsel, witnesses and other persons approved by the court may be present at a closed hearing. The foster parent, preadoptive parent or relative providing care for the child shall be given notice and an opportunity to be heard at the dispositional phase. Those other persons the court finds to have a proper interest in the case or in the work of the court may be admitted by the court to closed hearings on the condition that they refrain from divulging any information that would identify the child or family involved in the proceedings.
D. Accredited representatives of the news media shall be allowed to be present at closed hearings, subject to the condition that they refrain from divulging information that would identify any child involved in the proceedings or the parent, guardian or custodian of that child and subject to enabling regulations as the court finds necessary for the maintenance of order and decorum and for the furtherance of the purposes of the Children's Code. A child who is the subject of an abuse and neglect proceeding and is present at a hearing may object to the presence of the media. The court may exclude the media if it finds that the presence of the media is contrary to the best interests of the child.
[E. If the court finds that it is in the best interest of a child under fourteen years of age, the child may be excluded from a hearing under the Abuse and Neglect Act. A child fourteen years of age or older may be excluded from a hearing only if the court makes a finding that there is a compelling reason to exclude the child and states the factual basis for the finding.]
E. A child who is the subject of an abuse and neglect proceeding has the right to attend and participate fully in all hearings related to the child's case and shall be notified of that right by the caseworker for the department and the child's guardian ad litem or attorney; provided that if:
(1) after consultation with the child's guardian ad litem or attorney, the child requests to appear at a hearing by telephone or video:
(a) the guardian ad litem or attorney shall request that the child appear at the hearing by telephone or video; and
(b) the court shall arrange for the child to appear at the hearing by telephone or video;
(2) the child is not present at a hearing and the court determines that the child requested to appear at the hearing either in person or by telephone or video but that provisions for the child's appearance were not provided, the court shall continue the hearing;
(3) the court finds that there is a compelling reason to exclude the child from a hearing and states the factual basis for those findings on the record, the court may exclude the child from the hearing; or
(4) after consultation with the child's guardian ad litem or attorney, the child requests to be excused from a hearing, the court may excuse the child from the hearing.
F. Those persons or parties granted admission to a closed hearing who intentionally divulge information in violation of this section are guilty of a petty misdemeanor.
G. The court shall determine if the allegations of the petition are admitted or denied. If the allegations are denied, the court shall proceed to hear evidence on the petition. The court, after hearing all of the evidence bearing on the allegations of neglect or abuse, shall make and record its findings on whether the child is a neglected child, an abused child or both. If the petition alleges that the parent, guardian or custodian has subjected the child to aggravated circumstances, then the court shall also make and record its findings on whether the aggravated circumstances have been proven.
H. If the court finds on the basis of a valid admission of the allegations of the petition or on the basis of clear and convincing evidence, competent, material and relevant in nature, that the child is neglected or abused, the court shall enter an order finding that the child is neglected or abused and may proceed immediately or at a postponed hearing to make disposition of the case. If the court does not find that the child is neglected or abused, the court shall dismiss the petition and may refer the family to the department for appropriate services.
I. A party aggrieved by an order entered pursuant to Subsection H of this section may file an immediate appeal to the court of appeals.
J. In that part of the hearings held under the Children's Code on dispositional issues, all relevant and material evidence helpful in determining the questions presented, including oral and written reports, may be received by the court and may be relied upon to the extent of its probative value even though not competent had it been offered during the part of the hearings on adjudicatory issues.
K. On the court's motion or that of a party, the court may continue the hearing on the petition for a period not to exceed thirty days to receive reports and other evidence in connection with disposition. The court shall continue the hearing pending the receipt of the predisposition study and report if that document has not been prepared and received. During any continuances under this subsection, the court shall make an appropriate order for legal custody."
SECTION 4. EFFECTIVE DATE.--The effective date of the provisions of this act is July 1, 2024.
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